Raquel Del Valle-Santana v. Servicios Legales De Puerto Rico, Inc., Charles S. Hey-Maestre

United States Court of Appeals
For the First Circuit
No. 14-2057
RAQUEL DEL VALLE-SANTANA,
Plaintiff, Appellant,
v.
SERVICIOS LEGALES DE PUERTO RICO, INC.,
CHARLES S. HEY-MAESTRE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]
Before
Lynch, Thompson, and Kayatta,
Circuit Judges.
José R. Olmo-Rodríguez on brief for appellant.
Guillermo Ramos-Luiña on brief for appellees.
October 20, 2015

-- 1 of 10 --

- 2 -
THOMPSON, Circuit Judge. Plaintiff-Appellant Raquel Del
Valle-Santana ("Del Valle-Santana") claims her employer Servicios
Legales de Puerto Rico, Inc. ("SLPR") wrongfully terminated her on
the basis of her age in violation of the Age Discrimination in
Employment Act ("ADEA"), 29 U.S.C. §§ 621-634. The district judge
entered summary judgment in favor of the employer. Coming to the
same conclusion after our de novo review, we affirm.
BACKGROUND
As required when reviewing an order granting summary
judgment, we outline the facts in the light most favorable to the
non-movant, in this case Del Valle-Santana. See Penn-Am. Ins. Co.
v. Lavigne, 617 F.3d 82, 84 (1st Cir. 2010).
On January 12, 2012, Del Valle-Santana was fired from
SLPR, a non-profit legal services organization, where she had
worked for nearly 28 years. Del Valle-Santana began her career at
SLPR as sub-director in the Villa Palmeras office on January 16,
1984, and during her tenure was transferred several times to
different directorial positions in various SLPR offices.
Defendant-Appellee Charles S. Hey-Maestre ("Hey") became Executive
Director of SLPR on May 8, 2006.
In September 2008, upon her return from a year-long leave
of absence, Del Valle-Santana was made a sub-director at the
Carolina office because, at the time, the other director positions
were occupied. She was then transferred to Director of the Appeals

-- 2 of 10 --

- 3 -
Unit on August 10, 2009. Her transfer letter, signed by Hey,
stated that the transfer was a "lateral movement," and that her
salary and marginal benefits would remain the same. During this
time, in addition to serving as Director, Del Valle-Santana also
performed some director duties for the Corozal and Rio Piedras
offices, and worked on appeals as a litigating attorney.
In mid-November of 2011, Congress announced a major cut
in the amount of federal funds that would be allotted to the Legal
Services Corporation ("LSC"), the congressionally-created non-
profit corporation that manages annual appropriations from
Congress and allocates them to legal services organizations across
the United States. The LSC is a major funding source for SLPR,
and the appropriations cut translated into a decrease of
approximately $2.7 million, or 15 percent, of the SLPR budget for
2012. In response, SLPR's Board of Directors convened several
emergency meetings and ultimately decided to reduce staff, laying
off ten employees. As part of the lay-offs, SLPR eliminated the
Appeals Unit, which consisted of Del Valle-Santana's director
position and that of an administrative secretary. The ages of the
ten laid-off employees ranged from 28 to 76. No replacements were
sought for the Appeals Unit, as the unit was completely eliminated.
Del Valle-Santana was terminated on January 12, 2012 at
the age of 63. On June 25, 2012, after exhausting her
administrative remedies, Del Valle-Santana filed an employment

-- 3 of 10 --

- 4 -
discrimination complaint in federal court against SLPR and Hey
alleging that she had been unlawfully terminated on the basis of
her age.
DISCUSSION
I. Standard of Review
We review a district court's grant of summary judgment
de novo, and review the record in the light most favorable to the
nonmoving party, drawing all reasonable inferences in the
nonmoving party's favor. Maldonado-Denis v. Castillo-Rodriguez,
23 F.3d 576, 581 (1st Cir. 1994). In a wrongful discharge case
under the ADEA, the plaintiff bears the burden of proving that her
age was the "determinative factor" in her discharge, that is, that
she "would not have been fired but for [her] age." Freeman v.
Package Mach. Co., 865 F.2d 1331, 1335 (1st Cir. 1988). Where
there is no direct proof of discrimination, as is the case here,
we apply the now-familiar burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), which has
been adapted for ADEA cases. Woodman v. Haemonetics Corp., 51
F.3d 1087, 1091 (1st Cir. 1995).
Under the McDonnell Douglas framework, the plaintiff
must first make out a prima facie case for age discrimination by
showing that (i) she was at least 40; (ii) her work was sufficient
to meet the employer's legitimate expectations; (iii) her employer
took adverse action against her; and (iv) either younger persons

-- 4 of 10 --

- 5 -
were retained in the same position upon her termination or the
employer did not treat age neutrally in taking the adverse action.
Brennan v. GTE Gov't Sys. Corp., 150 F.3d 21, 26 (1st Cir. 1998).
Once the plaintiff establishes her prima facie case, there is a
rebuttable presumption of discrimination, and the burden shifts to
the employer to articulate a legitimate, nondiscriminatory reason
for dismissing the employee. Id. If the employer does so, the
presumption vanishes and the burden shifts once again. This time,
the plaintiff is required to show that the employer's proffered
reason is but a pretext, and "that age was the but-for cause of
the employer's adverse action." Vélez v. Thermo King de P.R.,
Inc., 585 F.3d 441, 447-48 (1st Cir. 2009) (quoting Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167, 177 (2009)).
II. The Age Discrimination Claim
On the motion for summary judgment below, the district
court assumed that Del Valle-Santana had established a prima facie
case, and accepted the defendants' proffered non-discriminatory
reason that the termination was a result of the unexpected budget
cuts. The district court then granted judgment in the defendants'
favor on grounds that Del Valle-Santana had failed to show that
this reason was pretext and that the termination was motivated by
age animus. Having reviewed the record, we affirm the grant of
summary judgment to the defendants, but do so on the ground that
Del Valle-Santana failed to establish a prima facie case for age

-- 5 of 10 --

- 6 -
discrimination. 1 See Hodgens v. Gen. Dynamics Corp., 144 F.3d 151,
173 (1st Cir. 1998) ("We will affirm a correct result reached by
the court below on any independently sufficient ground made
manifest by the record." (citation omitted)).
There is no dispute that Del Valle-Santana has satisfied
the first three elements of the prima facie case: (i) she was over
40 years old when she was terminated; (ii) her work met the
employer's legitimate expectations until the time of her
termination; and (iii) her termination constitutes an adverse
employment action. The parties disagree as to whether she has
established the fourth element: that younger persons were retained
in her same position after she was terminated (or that the
defendants otherwise did not treat age neutrally in their decision
to terminate her). See Brennan, 150 F.3d at 26.
The defendants argue that younger employees were not
retained in the same position because the Appeals Unit Director
position was "unique," and remained unoccupied after the Appeals
Unit was completely eliminated as a result of the budget cuts.
Del Valle-Santana disagrees, arguing that when SLPR transferred
her over to the Appeals Unit in the first place, they called it a
"lateral" move. Therefore, she contends the Appeals Unit Director
position was not unique, and the younger, less-experienced
1 Therefore, we do not reach the second and third steps of
the McDonnell Douglas framework.

-- 6 of 10 --

- 7 -
directors who were retained in other SLPR offices remained in the
same director position she had held before she was terminated. At
the very least, she says, whether these director positions were
the same or different is a disputed issue that should be submitted
to a jury.
We do not need to make a decision on the question of
whether the Appeals Unit Director position was the same as the
other director positions because even if we assume, favorably to
the plaintiff, that they were the same, Del Valle-Santana still
fails to state a prima facie case. Del Valle-Santana fails to
show that the younger employees who occupied these assumedly same
positions were significantly younger than her. See O'Connor v.
Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996). As the
Supreme Court explained in O'Connor, a prima facie case of age
discrimination "requires evidence adequate to create an inference
that an employment decision was based on an illegal discriminatory
criterion," and "such an inference cannot be drawn from the
replacement of one worker with another worker insignificantly
younger." Id. at 312-13 (emphasis added)(citation omitted).
Applying O'Connor, this Court has held that a three-year age
difference between a plaintiff and his replacement is "too
insignificant to support a prima facie case of age discrimination."
Williams v. Raytheon Co., 220 F.3d 16, 20 (1st Cir. 2000).

-- 7 of 10 --

- 8 -
While the burden of establishing a prima facie case is
"not onerous," the plaintiff is still required to prove the prima
facie elements by a "preponderance of the evidence." Tex. Dep't
of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Here, the
sole piece of evidence Del Valle-Santana has produced to prove
that younger employees were retained in her position after she was
terminated is a single paragraph in her affidavit that states:
"Several younger directors with less experience and seniority were
not fired. These were Yolanda Bonilla, Eduardo Escribano, Roberto
Laboy, Consuelo Melendez, Janice Gutierrez and Jamila Canario."
Del Valle-Santana does not provide the actual ages of these other
directors in her affidavit, nor is there anything in the record
that would otherwise indicate that these other "younger" directors
were significantly younger than Del Valle-Santana, so as to permit
an inference of age discrimination. Del Valle-Santana argues that
she was not required to provide the directors' ages, but provides
no case law to support this contention and no explanation of how,
given O'Connor, she can state a prima facie case for age
discrimination without doing so. 2 Thus, Del Valle-Santana has
2 Del Valle-Santana addresses O'Connor in her reply brief only
to argue that O'Connor does not require her to prove that the
retained directors were substantially younger. But, as we have
already explained, O'Connor does require a minimum showing that a
replacement (or in this case retained) employee was significantly
younger.

-- 8 of 10 --

- 9 -
failed to carry her plaintiff's burden to produce evidence
supporting a prima facie case for age discrimination.
Furthermore, other than these purported "younger"
comparators, Del Valle-Santana provides no evidence that the
defendants otherwise failed to treat age neutrally in their
decision to terminate her. See Brennan, 150 F.3d at 26. 3 For
example, she has not provided any evidence of incidents of age-
based animus. 4 The result is that Del Valle-Santana has failed to
establish the fourth prima facie element. She has not met her
burden to prove either that the "younger" directors who were
retained were sufficiently younger to support an inference of age
discrimination, or that the defendants did not otherwise treat age
neutrally in deciding to terminate her.
3 For example, lack of age-neutrality "may be manifested
either by a facially discriminatory policy or by a policy which,
though age-neutral on its face, has the effect of discriminating
against older persons, say, by leading inexorably to the retention
of younger employees while similarly situated older employees are
given their walking papers." Brennan, 150 F.3d at 27 (quoting
Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 479 (1st Cir. 1993)).
4 In her complaint, Del Valle-Santana alleged that Hey
referred to her and older directors as the "Medicare group,"
however the record contains no evidence to support this allegation.
In his affidavit, Hey denies ever making this statement. Del
Valle-Santana does not dispute the denial or make any other
reference to it, either in her affidavit or in her response to the
statement of facts in support of summary judgment, therefore we do
not consider it.

-- 9 of 10 --

- 10 -
We therefore conclude the district court properly
granted summary judgment in favor of defendants. Accordingly, we
affirm.

-- 10 of 10 --